Is it end of the road for ICC in Africa?

With about three months to the next sitting of Africa’s political executives in Addis Ababa, Ethiopia, all eyes will be on the continent for more announcements by countries severing their ties with the International Criminal Court (ICC).

Burundi, where The Hague-based court had hinted on opening inquiries into the April 2015 violence that led to the death of more than 400 people as a result of president Pierre Nkurunziza’s manoeuvres to get another term, kicked up the storm in which the country’s parliament voted in favour of withdrawal.

Along came the announcement by South Africa last week and unsurprisingly this week came Gambia. Of the 122 states party to the Rome Statute, which gave birth to the court in 2002, 34 are African. The withdrawal of Gambia, Burundi and South Africa will definitely motivate others to opt out.

Also, added to the fact that big world powers like China and India are not party to the court while others like Russia and the United States are signatories but have never ratified the Rome Statute, there is debate whether fairness exists in the international adjudication system.

ICC focuses on four major international crimes; war crimes, genocide, aggression and crimes against humanity.
Gambia’s information minister, Sheriff Bojang, on Wednesday said the court was persecuting and humiliating people of colour, especially “African leaders” while it ignores crimes committed by the West.

“There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted,” Mr Bojang noted, singling out former British prime minister Tony Blair, who was in July held culpable on the Iraq war by the Sir John Chilcot led inquiry but the international community looked on.

The ICC-Africa problem
After establishment 14 years ago, the court was greeted devotedly by many African countries. But in the subsequent years, especially with most of the investigations focusing on African countries, that zeal has waned in many quarters.

Only Africans have been charged in the six cases that are ongoing or set to begin, a fact that reinforces the reason advanced by many African governments.

Addressing a press conference early this week at the Senegalese capital, Dakar, the president of the court’s Assembly of States Parties to the Rome Statute, Sidiki Kaba, indicated that “although withdrawing from a treaty is a sovereign act”, the decision by South Africa and Burundi would open the way to other African states withdrawing from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity.

“I regret these decisions and invite South Africa and Burundi to reconsider their positions,” he said.
Currently, the court has probes underway in Uganda, Ivory Coast, Libya, Sudan, DR Congo, Central African Republic, Mali, Burundi, Nigeria and Guinea. Elsewhere the court is looking at cases in Georgia, Afghanistan, Colombia, Ukraine, Iraq and Palestine.

One of the decisions that seemingly rattled African governments is the decision by court to indict serving heads of state – Kenya’s Uhuru Kenyatta and Sudan’s Omar al-Bashir – which they say is disrespectful. Among the reforms some African countries are calling for is “immunity” for serving leaders.

Sudanese president Omar al-Bashir, for example, is wanted on two counts of crimes against humanity and genocide of more than 300,000 deaths in Sudan’s Darfur region. The court issued warrants for him 2009 and 2010 for the crimes, but since then he has been circling the globe to both ICC party and non-party states.

In 2011, the court went after now Kenyan president Uhuru Kenyatta, for his alleged role in the violence that claimed lives of about 1,300 people and forced 600,000 from their homes. Although the case collapsed, critics said it, like the case of Bashir, sparked off bad blood between Africa’s political executives, who are taken aback by the notion that tomorrow it could be any one of them, and the ICC.

Beginning of the end?
The commencement of trial of former president of the Ivory Coast, Laurent Gbagbo, in 2012 increased the loathing for the court. Opposition to court is led by Zimbabwe’s Robert Mugabe, Equatorial Guinea’s Teodoro Obiang Nguema and Gambia’s Yahaya Jameh.

However, not everyone is on board. At the just concluded AU summit in the Rwandan capital Kigali, the adoption of the resolution to withdraw from ICC was high on agenda but was vehemently opposed by, among other states, Nigeria, Cote d’Ivoire, Senegal and Tunisia.

In the wake of South Africa and Burundi’s withdrawal, Botswana’s foreign affairs ministry issued a statement condemning the decision, and indicated that: “...as the only permanent international criminal tribunal, the ICC is an important unique institution in the international criminal justice system.”

“Botswana, therefore, wishes to reaffirm its membership of the Rome Statute and reiterate its support for a strong international criminal justice system through the ICC,” the ministry said.

In Kampala, the head of public diplomacy at the Ministry of Foreign Affairs, Ms Margaret Kafeero, told Sunday Monitor that while government has been previously critical of the court, “we certainly did not choreograph what we are seeing unfolding.”

“Uganda has always been one to think through its decisions carefully and we continue to assess our relationship with the ICC and will weigh it against our immediate stability needs within the region,” Ms Kafeero says.

“With regard to the countries that have pulled the plug, it is the sovereign right for any state party of the Rome Statute of the ICC that wishes to invoke Article 127(i) on withdrawal to do so. Uganda reserves its comment out of full respect for this sovereign right.”

The associate director of the International Justice Programme at the New York-based Human Rights Watch, Elise Keppler, similarly says while the withdrawal from the ICC is a very serious move by a state that deeply undermines the cause of justice, many African ICC members continue to support and cooperate with the ICC.

She adds that there is no reason to believe that there will be a true mass withdrawal of all African states. “Other states have asked the ICC to open investigations in their countries in recent years and expressed strong support for the court in that regard – Central African Republic and Mali in particular,” Ms Keppler says.

“We believe it’s essential to work to lessen the unevenness of the ICC’s reach but not to opt out of the system, which dashes even the hope for possible justice.”